United States v. 201.19 Acres of Land, More or Less, in Grays Harbor County, State of Washington, Simpson Timber Company, and Unknown Owners

478 F.2d 1042, 1973 U.S. App. LEXIS 9970
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 14, 1973
Docket26918
StatusPublished
Cited by2 cases

This text of 478 F.2d 1042 (United States v. 201.19 Acres of Land, More or Less, in Grays Harbor County, State of Washington, Simpson Timber Company, and Unknown Owners) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. 201.19 Acres of Land, More or Less, in Grays Harbor County, State of Washington, Simpson Timber Company, and Unknown Owners, 478 F.2d 1042, 1973 U.S. App. LEXIS 9970 (9th Cir. 1973).

Opinion

OPINION

ELY, Circuit Judge:

Simpson Timber Company (“Simpson”) appeals from a condemnation award of $51,408.00. It vigorously asserts that this sum inadequately compensates for the taking by the United States of a “permanent and exclusive” easement through timber lands located adjacent to the Olympic National Forest in the State of Washington.

In support of its timbering activities conducted on the Olympic Peninsula, Simpson founded a company town in the Wynooehee Valley. Christened Camp Grisdale, the town provides repair yards and railroad reloading stations, as well as housing and other employee facilities. Connecting the town to the outside world as it winds through the Wynooehee Valley is the gravel-surfaced Grisdale Road, a portion of which Simpson holds in fee simple absolute. This road provides not only the most convenient access to Camp Grisdale, but also the target of the condemnation and the subject of this appeal.

Although prior to the condemnation there was some limited use of the road by the public and the Forest Service. Simpson has continually exercised control over the road and its use. When, for example, the Forest Service requested a public right-of-way over the road during the 1950’s, Simpson refused on the ground that expanded public use would adversely affect its logging operations. Simpson has used the road since the 1930’s to move equipment and supplies incident to those operations. Moreover, due to Simpson’s forestry management practices, it was quite definitely established that logging and concomitant traffic will increase substantially in the next ten to fifteen years.

A few years ago the Government approved the construction of a water storage and flood control dam across the Wynooehee River on nearby national park lands. The dam reservoir was intended for multipurpose uses, including recreation. Since the area would be accessible by means of the Grisdale Road, the Forest Service sought to obtain control through condemnation in order to improve the road surface and accommodate the anticipated traffic needs.

No suggestion is made that the condemnation itself was improper. The sole issue here raised is whether the amount awarded was so inadequate that it unconstitutionally deprived Simpson of property without just compensation. Specifically, Simpson contends (1) that the trial court’s award was predicated upon erroneous interpretations of the Sustained Yield Agreement and the Declarations of Taking, and (2) that the trial court improperly rejected Simpson’s appraisal testimony and relied solely on the testimony of United States appraisers who allegedly inaccurately evaluated the rights acquired and the damages suffered.

As a basis for fixing conpensation, the District Court sought to contrast Simpson’s interest before and after the condemnation. In formulating this contrast, the court specifically found that (1) all the proposed public uses were already permissible under the Sustained Yield Agreement; (2) all scheduled improvements were similarly allowable under the Agreement; (8) Simpson’s right to use Grisdale Road following its condemnation remained essentially unchanged; and (4) all of Simpson’s future needs would be accommodated by the road as improved by the United States. These four determinations provided the bases for the challenged award made by the District Court.

Woven throughout the four findings is a 1946 Sustained Yield Agreement between Simpson and the United States. *1044 Formally entitled “Cooperative Agreement for the Management of the Participating Forest Properties in the Shelton Cooperative Sustained Yield Unit,” and authorized by 16 U.S.C. § 583 et seq., the one-hundred year contract was intended to stabilize forest industry employment in the area by implementing sustained-yield forestry.

I

Underlying the first formulation was the court’s observation that, construing the Agreement with “long established national public policy”, Simpson and the Government “clearly” contemplated “continued public use” of Grisdale Road “throughout the term of the [Agreement] . . . and afterward.”

We cannot agree with this interpretation, for the agreement expressly provides that the road would be available for public use 1 only to the extent consistent with the objectives of the Agreement, Agreement at § 9, which included “continuous and sustained forest production,” id. at § 2, and “growing the maximum volume of forest trees to sizes suitable for conversion of salable forest products in the shortest possible time . . . .” Id. at § 5. It was therefore clearly contemplated that any permissive public access to the road was to be subservient to the dominant purpose of forestry.

The District Court also sought to justify its first finding by reference to a 1957 amendment to the Agreement, which provided that Grisdale Road would be classed a general service road and thus

“available for public use except when Company log traffic ... is sufficiently heavy to constitute a definite safety hazard, in which case public use requirements may be met by the provision of alternate routes or by appropriate regulation of traffic after classification as Special Service roads under the procedure outlined in Regulation U-14, issued by the Secretary of Agriculture.”

Since Regulation U-14 specifically provided that a road could not be classified as a “Special Service” road unless the Government already controlled the right of way, the Forest Service was without authority to, and did not in fact, route public use over Grisdale Road in derogation of Simpson’s interests. Reference to the 1957 amendment was, we think, irrelevant to the formulation adopted by the court.

Similarly misplaced was the District Court’s reliance upon “long established national public policy”. The program relating to multiple use of national forests, thereby embracing recreational use, was not initiated until 1960; consequently it sheds no light on the intentions of Simpson and the Government as of the time of their 1946 agreement. Multiple-Use-Sustained-Yield Act, 16 U.S.C. § 528.

As a final basis for its first formulation, the court found “substantial prior public use” of the Grisdale Road. We cannot discern adequate substantial evidence to justify this finding. Even after the road became a general service road in 1957, the Government itself admits that there was “relatively little recreational use” with only about “300 people per season stay[ing] a full day or overnight” in the area, and most of these were local fishermen. At the time of condemnation, the entire acreage contained only one ten-unit campground.

In sum, we reject as clearly erroneous the finding that the public use anticipated after condemnation would not exceed the use already permitted.

II

In its second formulation, the District Court found that the improvements now planned for Grisdale Road had -already been contemplated and authorized by the terms of the Agreement.

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Bluebook (online)
478 F.2d 1042, 1973 U.S. App. LEXIS 9970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-20119-acres-of-land-more-or-less-in-grays-harbor-ca9-1973.